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HomeMy WebLinkAbout2006-03-13 06-102 ORDERItem Ho. Qg 102 Date: 03-13-06 Item/Subject Authorizing Execution of Documents with Maine Central Railroad - WaterwoHcs Road Crossing Responsible Department: Engineering The City is preparing to construct Waterworks Road from State Street to the Waterworks site in accordance with the Development Agreement with Shaw House DevelopmentInc. MDOT has already authorized the crossing, and the City has already taken the parcel and created a paper street. A Construction Agreement and Railroad Service Agreement are necessary to actually build the mad across the railroad tracks. The Transportation & Infrastructure Committee recommended approval of these documents at its March y, 2006, meeting. Department Head Manages Comments: rl F� ,(% ,� � � a Recommend approvalp &a —rod V w" m+W City Manager Associated Information Budget Approval: �61Finanr Introduced for Passage _ First Reading Page _ M_ Referral nP 102 M Assigned ro Councilor creme March 13, 2006 CITY OF BANGOR (TITLE.) ORDER, Authorizing Execution of Documents with Maine Central Railroad - Waterworks Road Crossing ey me ob cwnor eme OW eaangor. ORDERED, THAT The City Manager is authorized, on behalf of the City of Bangor, to execute a Construction Agreement and Railroad Service Agreement with Maine Central Railroad relative to the Waterworks Street crossing. Said documents shall be in a final form as approved by the City Soliotor or Assistant City Solicitor. ID CITT COODCIL Ma 1]. 2006 P �ed y 06-102 O&D 64 m m Imo) AutM1ociaiag ffiecucion of m meat V (C thre - Waterimormus Coad Crossing Af51gna1 b Councilor bre- C)� 06 102. BOSTON AND MAINE CORPORATION SPRINGFIELD TERMINAL RAILWAY COMPANY RAILROAD SERVICE AGREEMENT AGREEMENT made as of this day of , 2006 by and between the "Railroad" as described] in paragraph 1.A. below and "Contmcmr" as described in paragraph I.B. below. In consideration of the mutual promises, covenants and undenekings contained herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby expressly acknowledge, the parries agree as follows: 1. The following terms shall have the meanings specified whenever used in this Agreement A. RAILROAD: Boston and Maine Corporation and Springfield Terminal Railway Company do Guilford Transportation Industries, Inc. Iron Horse Park North Billerica, Massachusetts 01862 B. CONTRACTOR: The following describM party, together with its agents, servants, employees, subcontractors, suppliers, consultants and engineers: C. PROPERTY: D. RAILROAD SERVICES: The Radmad shall perform such services and provide such equipment and materials which it deems, in its sole discretion, necessary for the safe performance by the Contractor of the Construction Project, including, without limitation, the performance of all prebminary, office and field engineering; internal record keeping and accounting; railroad Ragging and signaling; restoration of replacement of the Railroad's track or ballast; and all railroad inspection; and the Railroad shall provide all railroad communication equipment and materials. os 102 E. INITIAL RAILROAD SERVICE FEE: To be invoiced by the Engineering Department of the Railroad. F. CONSTRUCTION PROJECT: G. TERM: One (1) year from the date first written above or completion of the construction Project whichever occurs first. IL EXHIBITS: The following Exhibits annexed hereto are hereby incorporated in this Agreement by this reference: bLLentionally omitted. 2. ENTRY UPON RAILROAD PROPERTY. The Railroad hereby agrees to permit the Contractor to enter upon the Railroad Property for the Term for the limited purpose of performing the Construction Project, provided that the Contractor complies with all of the several terms, conditions and covenants contained in this Atonement, the Construction Project hereinabove described, and all work requirements and directions of the Vice President - Engineering of the Railroad, or his authorized representative (the "Vice President -Engineering"). 3. RAILROAD SERVICES. In connector with the Communal; performance of the Construction Project, the Railroad shall provide the Railroad Services. 4. RAILROAD SERVICE FEES. In consideration of the performance by the Railroad of the Railroad Services, the Contractor shall pay to the Railroad the Initial Railroad Service Fee. The Railroad hereby reserves the right to require additional Railroad Service Fees for Railroad Services necessary to complete the Common on Project. The Contractor fuller agrees to pay the Railroad a man -refundable f of five hundred ($50000) dollars as reimbwsement for the costs and expenses incident to the preparation of this Agreement. 5. NOTICE OF INTENTION TO COMMENCE THE CONSTRUCTION PROJECT. The Contractor sball provide the Vice President -Engineering of the Railroad with seven (7) days' notice in advance of its intention to commence the Construction Project. 6. COVENANTS OF THE CONTRACTOR. The Contractor hereby covenants and agrees that it will observe the following affirmative and negative covenants during the term of this Agreement: (a) The Contractor shall perform the Construction Project in a safe, good and workmanlike manner and in accordance with the description of the Construction Project berein contained and all work requirements and directions of the Vice President -Engineering. (b) The Contractor shall permit to enter upon the Railroad Property and perform the OR 102 Construction Project only those contractors and/or subcontractors having, in the exclusive opinion of the Vim President -Engin Bring, sufficient engineering, construction expertise and financial ability to accomplish the Constrmcmat Project. The Railroad shall have the right to disqualify any contractor or subcontractor employed by the Contractor from performing the Concoction Project for the following reasons: (i) Failure to pay in full monies owed to the Railroad; or (it) Use of, or reputation for use of, construction methods or procedures which, in the exclusive opinion of the Vice President -Engineering, are unswe, Imindcally deficient, or not in compliance with the Railroad's standards. Any connector or subcontractor so disqualified by the Railroad shall immediately vacate the Railroad Property aM shall not mender the Railroad Property without the prior written approval of the Vim President -Engineering. (c) The Contractor shall not at any fime, except with the prior approval of the Vice President -Engineering, eater upon the Railroad Property or perform the Construction Project without the presence at the Railroad Property of a mumant, inspector, or Flagman as may be assigned or required by the Vice President-Engineenng, in his exclusive opinion. (d) The Contracmr shall procure and maintain, at its sole cost and expense, the following insurance coverages naming the Railroad, exactly as designated in Paragraph 1, as insured, in forms and with companies and coverage limits satisfactory to the Raimen: (I) Comprehensive General Liability Insurance protecting against liability from bodily injury or property damage arising out of the Construction Project. (id Workers Compmemon and Ooeupronnal Disease Insurance, as costumed by law. (iii) Automobile Liability Insurance covering all motor vehicles used about or . in correction with the Construction Project (iv) Railroad Protective Liability Insurance. (e) The Contractor shall Moore and maintain, at its sole cost and expense, all permits, licenses and approvals of all governmental authorities and all consents of all -third parties necessary for the Contractor to perform the Construction Project. The Contractor shall comply with, and shall cause the Railroad Property to comply with, all applicable local, county, state or federal laws, codes or orxbnanees of any description, including but not limited to: zoning, building, engineering sanitation, health or environmental laws, particularly, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9601, w seq., as 06 102 amended) ("Law"). The Contractor shall promptly remedy any breach of any Law. ]. INTERRUPTION OF CONSTRUCTION PROJECT. (a) Upon demand by the Railroad, the Contractor hereby agrees to immediately: (i) Cease performance of the Construction Project; (it) Clear the Railroad Properly of all personnel, materials, equipment or obstructions and render the Railroad Property safe for the passage of trams; and (iii) Vacate the Railroad Property until such time w the Railroad gives notice of permission to re-enter the Railroad Property. (b) In the event that the Contractor ceases work on the Construction Project, for any reason whatsoever, the Contractor shall provide notice of the same to the Vice President - Engineering and shall leave the Railroad Property in a safe condition, satisfactory to the Vice President -Engineering. & PRIORITY OF RAILROAD OPERATIONS. The operations of the Railroad, Guilford Transportation Industries, Inc. ("Gudford"h the affiliamd railmads of Guilford, (in general, and those running though the Railroad Property in particular) and the operations of the lessees, licensees and other lawful occupants of the Railroad Property shall have absolute priority over the performance of the Construction Project. The Contractor hereby agrees that the Construction ProjW shall be performed only at such hours and times and under such conditions as specified by the Railroad. Such boom and times shall be subject to change without prior notice to the Contactor. The Contractor bereby acknowledges and agrees that the Contractor may suffer delays and increased costs due to said agreed upon priority of the Railroad's and others' operations. Causes for such delay and increased cost may include: (i) the inability or default of Ne Railroad in providing adequate personnel to allow work; and/or (it) passage of trains. The Parties agree that bad the Contractor desired b proceed with the work without befog subject to the aforementioned delay and increased cost, the terms of this Agreement would have been substantially different, and per diem costs to the Contractor, depending on job location, rail traffic, etc. could have far exceeded the Railroad Service Fee to be paid bereunder. 9. INDEW11FICATION OF RAR.ROAD. The Contractor hereby agrees to defend with consist acceptable to the Railroad, release, indemnify, protect and hold harmless the Railroad, Guilford, their affiliates, successors and assigns, their lessees and licensees and all other lawful occupants of the Railroad Property firm and against any and all loss, cost, damage, or expense ansing in any way out of the Construction Project or Contractor's use or possession of the Railroad Property including, without limitation, (i) all claims or suits for loss or damage to property of any description or numzl resources, (it) personal injury, sickness or death of any person, (in) delay damages, (iv) consequential damages, (v) all matters relating in the alteration of wetlands, (vi) breach of any Law, particularly any alleged release of oil or hazardous or otherwise hazmfid materials or substances (including, but not limited to casts for assessrm nR remedial or response actions), or (vii) other damages arising in any way out of the Construction Project or Contractor's use or possession of Railroad Property, whether such loss, cost, damage, or expense is suffered by the Contractor, the Reilroad, Guilford, their affiliates, successors, assigns, lessees, bounce and all other lawful occupants of the Railroad Property, or the officers, agents employees, or representatives of any of them, or by others. (b) In addition to the provisions above, the Convector expressly agrees to assume responsibility for; and to release Railroad, Guilford and their affiliates from, any and all claims, Wats, suis, judgments arising firom or related to any actual, alleged or Potential violations of any federal, state or local environmental law, regulation, rule, ordinance, or code discovered by Contractor in a manner that relates in any way to the performance of the Construction Project, including, but not limited to, any school, alleged or Potential violations that existed prior to the execution of this Agreement. (c) In the event that at any time during the performance of the Construction Project, the Contractor discovers any contamination or suspected contamination that triggers notification requirements under any applicable federal, state or local law, rule, regulation or ordinance, the Contractor agrees to promptly notify the Railroad, who will assume responsibility fm performing any notification, if necessary, in accordance with goad environmental practice, end ifany further investigation or remediation is determined necessary the Railroad will perform the investigation and remediation. The Contractor agrees to indemnify the Railroad of any and all costs associated with the environmental contamination. The Contractor shall be held solely responsible for the cost of any necessary investigation and/or remediation. 10. GENERAL PROVISIONS. (a) Any notice or other communication in connection with this Agreement shall be Deemed duly served when received (or upon attempted delivery if delivery is not accepted). Such notice shall be in writing and either delivered by hand or mailed (I) by registered or certified mail (return receipt requested) with the United States Postal Service, or (It) by Federal Express or other overnight mail carrier brrdshing evidence of receipt to the sender, at the address for such party set fan, in Section 1. Either parry may change the address at which it is to receive notices by entice given as hereinabove set forth. (b) Failure of the Railroad to complain of any act or omission hereunder on the part of the Contractor, no matter haw long the same may emotions, shall not be deemed a waiver by the Railroad of any of its rights hereunder. No waiver by the Radmad at any time, express an implied, of any breach of any provision of this Agreement shall ever be deemed a waiver of a breach of any other provision of this Agreement, or a consent to any subsequent breach of the same or any other provision. If any action by the Contractor shall require the Railroad's consent or approval, such camosent or approval on any particular occasim shall not be deemed a coruent or approval of any other action on any subsequent occasion. 06 102 (c) If any provision of this Agreement, or the application thereof to my person or circumstance, shall to any extent be Invalid or umenfaceable, the remainder ofthe Agreement, or the application of such provision to persons or circumstances other than Nose as to which it is invalid or unenforceable, shall not be affected. Eacb provision of this Agreement shall be deemed valid and enforceable to the fullest extent permitted by law. (d) The Saxon headings contained in this Agreement are for reference and convenience only and in no way define or limit the scope and contents of this Agreement or in any way affect its provisions. (e) Tbis Agreement constitures the entire understanding between the parties relating to Ne subject mother hermf, supersedes all prior oral end written offers, negotiations, proposals, representations, agreements, promises of dealing and understandings between the parties relating to the subject matter herrof and is subject an no wderstandings, conditions, or representations other than those expressly stated herein. (f) This Agreement may only be amended or modified by a writing signed by all of the parties hereto which ref to this Agreement. (g) This Agreement shall be governed by and construed in accordance with the laws oftbe state wherein the Railroad Property Is located. (b) Neither party N this Agreement shall be responsible in the other for delays or errors in its performance or othr breach of this Agreement occurring solely by reason of circumstances beyond its control, including acts of civil or military authority, national emergencies, fire, labor disputes, flood or catastrophe, acts of God, insurrection, war, riots, delays of suppliers, or failure of transportation, communication or power supply. (I) The parties agree that neither this Agreement nor any memorandum thereof shall be recorded at any registry of deeds and that any such recording by the Contractor shall constitute a breach of this Agreement. Q) If the Contractor executes this Agreement through an agent or representative, each such agent or representative hereby warrants and represents to the Railroad that he is authoneed to execute, acknowledge, and deliver this Agreement on behalf of the Contractor and to thereby bind the Contractor in the same. (k) This Agreement. (I) may be executed in any number of counterparts, each of which when executed by all parties to this Agreement shall be deemed in be an original, and all of which counterparts together shall prostitute one and the same instrument, (ii) shall take effect as a sealed instrument, (iii) shall bind and inure to os 102 the benefit of the parties and their respective legal representatives, successors and assigns, except that the Contractor may not delegate any of its obligations under this Agreement or assign Nis Agreement without obtaining Ne Railroad's express anuhn consent, and (iv) is not intended to more to The benefit of any third party beneficiary. (1) This Agreement shall not be consnced as creating or vesting in the Contractor any estate in the Railroad Property, but only the limited right of using the Railroad Property in Ne manner hereinabove described. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as a sealed instrument as of the date first set forth above by their duly authorized representatives. RAILWAY COMPANY By: George S. Thayer, Chief Design Engineer her, Horse Park N. Billerica, MA 01862 BOSTON AND MAINE CORPORATION By: George S. Thayer, Chief Design Engineer Iron Horse Park N.Billerica,MA 01862 NAME OF CONTRACTOR By: Name: nF 102 CONSTRUCTION AGREEMENT THIS AGREEMENT made this day of 2006, by and between Ne City of Bangor, hereinafter referred to as the "City" and Maine Central Railroad Co /Springfield Terminal Railway Company, with offices at Iron Hone Park, North Billerica, Massachusetts, hereinafter referred to as the "Railroad". WHEREAS, by virtue of Maine Department of Transportation Rail Decision — RR H 288-D established a Public Railroad crossing at Station 99+12 of the Maine Central Railroad line as shown on a plan entitled "Right -of -Way and Track Map, European and North American BY., operated by the Maine Central Railroad Company, Station 52+80 to Station 105+60", originally dated June 30,1916 and numbered V-15/2 upon certain conditions; and WHEREAS, the City has done a layout and taking for the creation of Waterworks Road at said crossing to access the former Waterworks ads; WHEREAS, the Public Railroad crossing needs to be constructed to comply with Maine Department of Transportation Rall Decision —RRk 288-1); and WHEREAS, the City's work will require Railroad in provide inspection and flagging, and to Perform track, signal and other. work, as required, and _ WHEREAS, the Railroad is willing to perform such City's work, subject to certain terms and conditions; and WHEREAS, the work is to be finmmed in fall by funds provided by the City, NOW, THEREFORE, in consideration thereof and of their mutual understanding therein, the Partes agree as follows: PROJECT: The Railroad will perform the work required to comply with Maine Department of Transportation Rail Decision— RR # 288-D, attached hereto as EXHIBIT "A". EXECUTION: The work as detailed in EXHIBIT "B" will be performed by the Railroad. Any changes within the Scope of Work, required to complete the project. that are mutually agreed to by the City and Ne Railroad, shall also be attached hereto and made a part hereof. It is agreed that any supplemevrary estimate which may be necessary, and which is subsequently approved by the City and the Railroad, shall also be attached hereto and made a part hereof. REOUIREMENTS OF CITY: The City agrees to require its contractor(s) to execute a Railroad Service Agreement prior to entry upon the work site, as prepared by the Railroad's Real Estate Department, and to furnish Railroad Protective Liability Insurance in a form acceptable to the Railroad prior to entry upon the work site. nR 102 PROVISIONS FOR METHOD OF PAYMENT TO THE RAILROAD: The work as detailed in EMBIT'B" has been estimated to cost$ inlivng the best Information available at the time of estimating. . I- The entire cost of performing the work will be home by the City, and the City will pay for all labor, materiel, equipment and other services performed by the Railroad to complete the work as required by with Maine Department of Transportation Rail Decision — RR # 288-D. 2. The Railroad will submit to the City a written request for as advance deposit up to the mount of the estimated cost oftlmproject, including any supplemental estimate(s). She Citywill make paymenito the Railroad within 30 days of receiving the winner request. 3. The Railroad wW providethe City with an accounfiugofactuel costs incurfedtoperform the work. If the actual best incurred by the Railroad exceeds the advance deposit(s), the City will makepromptpaymentofthebalauce. The Railroad willrefund any advanced funds not spent, following receipt of a written request from the City. PROJECT COMPLETION: Upon completion of the proon, the Railroad will maintam its facilities as required by the applicable regulations and statutes. The roadways and appurtenances will be maintained by the City as required by the applicable regulations and statutes. Both parties will comply with Maine Department of Transportation Rail Decision —RR p 288-D. MATERIAL PROCUREMENT: The Railroad will furnish a listing ofrequired materials, by vendor, to the City in the form of purchase orders, said purchases to be procured by the Railroad. The City agrees to make payment directly to the vendors for the materials, upon notification from the Railroad that the material has been received. This Agreement shall take chaser on the day and year firs[ above written and shall continue in effect until the work to be performed by the Railroad is completed or until terminated by thirty days written notice from either party. IN WITNESS WHEREOF, the parties berm have executed this Agreement on the day and year above written. MAINE CENTRAL RAILROAD CO./ SPRW GFIELD TERMINAL RAILWAY CITY OF BANGOR CO. James D. Ring George S. Thayer Director— Office of Infrastructure Chief Design Engineer 06 ;0z EXHIBIT'S' Maine Central Railroad Co./Springfield Terminal Railway Co. Bangor, Maine — Railroad Street SCOPE OF WORK Inspection and Flagging of City of Bangor's work on at affecting Railroad property and operations Tmckwork -Installation of redesigned grade crossing at Waterworks Road, including rubber Rangeway. Paving and vehicular detour to be furnished by City. Tmckwork to assist with open -cut installation of utilities. Maintenance of track during and after construction. Signal—Installation of active crossing warning devices 9 relocated Waterworks Road. Reconfiguration of signal and communication appurtenances as required to accommodate the conNuction. See Construction Estimate for further details.